Writs is nothing but a formal written order by an administrative or judicial body, here in today’s times the body refers to the courts. There are many types of writs like prerogative writs, warrants etc. Earlier only the English monarch used to make the writ orders to a specified person for a special order. The writs were a part of the Anglo-Saxon society and had a brief administrative order along with a seal.
WRITS IN INDIA
The Indian constitution gives the hon’ble Supreme court and High courts in India to issue orders, directs, warrants which all fall in the category of writs. It is a formal written order by the courts. Indian courts give out orders in the limits of prerogative writs the term as used in English laws. The fundamental rights will become useless if they cannot be enforced if one’s fundamental rights have been violated therefore the constitution mentions that the Supreme court and the high courts have the right to issue the writs so that the fundamental rights can be enforced.
The writs which the Indian courts can give out are habeas corpus, prohibition, mandamus, certiorari and quo warranto. In India out of six essential prerogative writs five of them are issued. India adopted the writ system from the English laws of the Britain. Before 1950 only high courts of Kolkata, Madras and Bombay had the power to issue writs amongst all the high courts. It is a provision made to ensure that the right to constitutional remedies is available to everyone.
it means you must have the body and the purpose of this writ is to release a person who is unlawfully detained in private or in custody. It is the remedy which helps one report unlawful detention to the court. It is issued to the authority who has detained the person to produce the person detained in front of the court who has not been produced in front of the magistrate within twenty-four hours to decide whether the person detained has been lawfully detained or not. And if not given the lack of evidence, then the court orders the release of the person.
It checks whether the person has the lawful authority to detain the other. The arrested person has to be brought in front of the court or a judge. This writ can be issued against the state as well as any person holding or detaining a person unlawfully in case of high courts but the supreme court can issue it against the state only in case of violation of fundamental rights. The wrongdoer is not to be punished the only purpose is to get the one wrongfully detained free.
It is a very important right in terms of safeguarding an individual’s personal liberty as article 21 of Indian constitution cannot be suspended even during the times of emergency. It is only the writ of right not course and it is just a procedural remedy it does guarantee against an unlawful detention but may not protect other rights. It can be filed by the means of petition and the petition can be filed by the detained person himself or anyone on their behalf. One reason the other person files the petition is because the detained person is incommunicado.
It simply says “we command” and its purpose is to secure the performance of public duties by tribunals, public authority or lower courts. It asks the subordinate bodies to perform the acts which are under their duties. It helps enforce private rights which are being held by public authorities. The court orders the subordinate bodies to do any specific task which they have refused to do or are doing improperly. The task should in the nature of public duty and mentioned in the statutory provisions. Primary function of mandamus is to “command” and “execute”.
Its purpose is to keep the public authorities within their limits of jurisdiction while going through their public duties. It is a judicial remedy which prevents any unlawful act or improper way of doing the duty. The supreme court orders it when violation of fundamental rights takes place due to some government order or act and the high can issue the same to ask an officer to exercise their constitutional and legal powers, to compel ant person to do the duties given to them by the statutes, ask the judicial authority to use it jurisdiction and the government to not to form any unconstitutional laws.
It can’t be issued against private individuals. The duty that has to be carried out should be mandatory. It can be filed against any public official body and by anyone who has the legal right to file this writ petition.
It is a stay order basically. Its purpose is to prohibit a subordinate court from continuing a proceeding over which it has no jurisdiction. It is an order directing the lower courts to stop doing something prohibited by law. It is divided into “alternative writ” or “peremptory writ”. When the lower court or tribunal tries to transgress its powers or overstep their jurisdiction this writ comes into play. It is not available to be used against a public official but against a subordinate court or tribunal.
It means to forbid. The court prohibits the lower courts or quasi-judicial bodies to stop the proceeding on the matters which are ultra-vires to them and it keeps the lower courts in the limits of their jurisdiction. Prohibition can be issued at any point of proceedings.
It talks about “what is your authority” and its objective is to prevent or stop or restraint a person from holding a public office which he is not entitled to or has a right over. It is Latin for “by what warrant”. It questions the legality of the person to hold the public office. It prevents any illegal assumption of public office. It is not issued in the case of private office and individuals. High court can issue this writ when then public official is holding the public office beyond the age of retirement.
It makes an announcement of the illegality of the appointment and might ignore other aspects. The court can ask the person with no authority to stop acting or vacant the office. The writ also protects the public against being deprived of the public office they have a right over. The office must be created by a statute or by the constitution and should be public. the person should not have the authority over the public office then only this writ can be issued. The person against whom the writ is issued has to prove his authority over the public office.
It means “to be certified” or “to be informed” with the purpose of quashing the order given by the subordinate courts or quasi-judicial bodies or tribunals. It can be given by supreme court or high court both to quash the orders and it also can order to transfer the case to them to check or review. It can be said that certiorari is given after the order has been passed by the subordinate courts or tribunals. It is passed to correct the error by the jurisdiction of the judicial or quasi-judicial bodies or tribunals or when they act in excess of their jurisdiction or lack of it or when they act without any jurisdiction.
Supreme court has the power to grant the certiorari power to other courts for the implementation of fundamental rights and both high courts and supreme court have the power to issue certiorari and protect the rights of others. Also, this writ can be issued in disregard of principle natural justice. Earlier the writ of certiorari was against judicial and quasi-judicial bodies but later in 1991 it was declared the writ can be issued against administrative bodies as well which affects the rights of persons.
DIFFERENCE BETWEEN SUPREME AND HIGH COURT JURISDICTION OF WRITS
There is a difference in the jurisdiction of writs between Supreme court and the High courts on the basis of objective, territorial jurisdiction, power and articles of the Indian constitution.
Objective- supreme courts issues the writ to enforce fundamental rights whereas the high court issues the same to implement the fundamental as well as other legal rights. Supreme can only issue the writ where the fundamental right is violated.
Territorial jurisdiction-supreme court can issue the writ against any person or government throughout India whereas the high court can only do so against any person, government or authority within its territorial jurisdiction and if the cause of action has arisen within its jurisdiction then only it can issue writs outside its jurisdiction.
Power- supreme court cannot deny to execute its power of issuing writs whereas the high court can refuse to exercise its power.
Article of the Indian constitution- supreme court can be approached under article 32 of the Indian constitution whereas the high courts can be approached under article 226 of the constitution of India.
FILING A WRIT PETITION-
The writ petition can be filed in both supreme court and high court under articles 32 and 226 respectively. It has to be first drafted and then the petition is filed at the filing counter in court. After that on the date of hearing the petition is admitted and a notice to the other party can be send. Then the proceedings will take place a relief will be granted accordingly.
These five writs are used in India under the prerogative writs and quo warranto and habeas corpus are used in specific conditions but certiorari and mandamus are mostly used in general situations. They are a way to provide constitutional remedies to the Indian citizens and ensure that their fundamental rights are secured as rights to constitutional remedies is it-self a fundamental right and also because it prevents violation of other fundamental and legal rights as well.
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Author: Lavanya Goel,
Symbiosis Law School, Noida